Local Government Employment Review: October 2015 – Credibility crucial in NHS unfair dismissal case
The outcome of employment cases often depends on the credibility of witnesses, and tribunals cannot duck their responsibility to resolve conflicts of evidence.
That point was forcefully made in the case of an NHS care assistant who was sacked after being accused of threatening a patient.
The man was alleged to have made threatening comments to a female patient who was being restrained by two of his colleagues, who became his accusers. He denied having uttered the offending words but was later dismissed for gross misconduct after a disciplinary panel found that he had.
His unfair dismissal claim was subsequently rejected by an Employment Tribunal (ET) on the basis that his employers had fairly investigated the matter, had honestly believed that he had made the comments and that his summary dismissal without notice lay within the range of reasonable responses.
However, in upholding the man’s challenge to that decision, the Employment Appeal Tribunal (EAT) noted that the man’s accusers had not given live evidence before the ET, whereas he had maintained his denials under oath. The ET had failed to resolve the conflict of evidence at the heart of the case or to make any findings of fact as to whether the comments were actually made. It had, in effect, delegated that crucial part of its decision to the employer’s investigation. In those circumstances, the case was sent back for re-hearing by a freshly constituted ET.
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